From child porn to starving musicians, all of the distracting tactics and issues were on display Tuesday at the hearing of the House Judiciary Committee’s Antitrust Task Force. The would-be owners, operators and managers of the Internet once again threw everything they had the simple idea that the companies owning the networks connecting to the Internet shouldn’t play favorites.
Network management was mingled with, and mangled, the concept of net neutrality and non-discrimination. The praises of the competitive marketplace were sung at a time when Americans can choose between two providers, if they are lucky.
Fortunately, there was also some sanity in the hearing. Damian Kulash from OK Go provided the perfect antidote to the newest plea from the entertainment industries, which want to use the Net for their purposes. Michele Combs from the Christian Coalition and Caroline Frederickson from the ACLU defended today’s free speech online. And Yale University Law Professor Susan Crawford really nailed the issue in its broadest and most fundamental form when she put the history of protected speech on the Web in the same category as the development of the telegraph and the telephone.
You can watch the proceedings here.
Certainly, Judiciary Committee Chairman John Conyers (D-MI) got it right when he said, “The open architecture of the Internet is under siege.” As he opened the hearing, the siege was all around him. Out in the hallway by the Judiciary Committee room, a coalition of religious and conservative groups was passing out a letter to Congress which contained the classic toxic mix of arguments designed to insert the classic fear, uncertainty and doubt (FUD) into the debate over a non-discriminatory Internet.
The letter picks up the bogus talking points of the Bells and cable and adds some of its own in an attempt to link net neutrality with network management with kiddie porn and railing against attempts to impose “burdensome regulation” on the Internet, the letter said that while the Internet has change for the better how people communicate, it “has also made obscenity, child pornography, and other objectionable content readily accessible. Thankfully, research, innovation and competition have given Internet users tool to block unwanted content from entering their homes.”
The letter said it’s important for parents and broadband service providers “to have these tools available to them because despite what network neutrality proponents may say, all content on the Web is not equal and should not be treated equally. Network management is not some insidious method of stifling voices on the internet; network management is critical to stop pornographers and pedophiles from having unfettered access to consumers’ Internet connections.” Rep. Debbie Wasserman-Schultz (D-FL) also tried to make that connection, also unsuccessfully.
Network Neutrality has nothing to do with child pornography. It has nothing to do with an inability to make distinctions between content, either on the desktop of the user or in the server of an applications provider. Today, it’s the front ends like Yahoo! or MSN that provide content filtering, not the network, although as we’ll see, many would like that to change. By saying that a network non-discrimination policy means all content should be “treated equally,” misinterprets the meaning of “equally.”
It doesn’t mean that consumers can’t place a value judgment on whatever goes across the Net. It doesn’t mean that law enforcement can’t enforce laws against illegal material. It means that network providers don’t have a say in the terms and conditions about content and can’t play favorites.
At the moment, network management isn’t a way to stifle voices online. But it could be if the special pleaders get their way. Rick Carnes, head of the Songwriters Guild of America, pleaded with the Committee to let the Internet become a filtered network because of the alleged rampant piracy on an unfiltered network. Ten years of “dumb pipes” has hurt the decimated songwriting industry, he said. Perhaps “intelligent pipes” will help save it.
If there is any intelligence to be employed, it should come from the musicians, as Kulash demonstrated. He didn’t endorse piracy; indeed, he agreed with Carnes that “musicians should be paid.” But Kulash described how his group finally broke out in defiance of its record label by putting its now-famous videos of the group dancing in his backyard and on treadmills. They reached hundreds of thousands of new music fans, allowed the fans to participate by staying away when home videos with the group’s music were made and the result was great for everyone.
The content community deludes itself into thinking that “intelligent pipes” will save the day for it by filtering for content, or by looking for what someone considers “objectionable content.” If the government had proposed taking that function on for itself in some case, the conservative groups would be up in arms. It is disappointing they are willing to cede their rights to big businesses which have no interest in them. What will happen to Carnes or one of his colleagues if something of his is filtered out? What will happen to those groups signing the letter if something of theirs gets lost in the pipes? Combs is right that it’s the message, not the network, that counts.
And so we come to Crawford, who talked about the social contract we as a people have had with providers of communications services for more than a century. The carriers make money, but they can’t discriminate about the traffic. The carriers want to break out of that common carrier mold, but in doing so they threaten the foundations of our communications system. They want to transform our Internet into their Internet, and by the way, throttling protocols that support services that might compete with them or those with whom they make deals.
“It is so easy to rationalize discrimination,” Crawford said, and she’s right. It’s even easier in a market that, despite the protestations of the groups or many members of Congress, doesn’t remotely resemble a free, competitive market, much less one which has produced much in the way of innovation. Everything from the basic building blocks of the Internet, the packets, to the Internet filtering, has come from the imagination beyond the reach of the telephone network. This built-in duopoly imposed by regulators at the wish of incumbents has only succeeded in making money for the companies while consumers pay more for less in the way of broadband service than in other countries.
It’s time to start thinking, again, about how big and powerful these companies are and how much influence we as a country want them to have over basic rights. They now own the White House, much of Congress, many state legislatures and innumerable sock puppets. They are not content with transporting content – they want to control it and they have willing allies who think that censorship will only affect other people.
In a few months when new policies are starting to be discussed, perhaps a couple of them in our part of the world should include creating a real competitive market for broadband, and Divestiture II. The good competitive affects of the first one lasted for a little while, but were soon done in, leaving us where we are today with the telephone and cable companies grasping for even more control of what they never have controlled and never should control.